Thursday, 8 October 2009

Transsexual Prisioner Transfer

You probably are familiar with the widely reported successful claim by A against the Secretary of State for Justice and the governor of Manchester Prison in judicial review that she should be allowed to be transferred to a women's prison in order to fulfil the requirements to enable her to eventually receive SRS.

The summary of the facts are as follows. She was convicted of attempted rape whilst a man (her second indictable conviction) and given a life sentence. She began her transition while on remand in 2003 after a diagnosis of gender dysphoria.

Undeniably she has not entered any rehabilitation program and still poses a risk to society which makes her release on licence unlikely (and undesirable) for the foreseeable future.

The description of her incarceration suggests she is fulfilling a large part of the requirements for RLE, (subject to restrictions) including facial hair removal (who paid for this may be especially interesting to many trannssexuals who struggle to find the funds to afford electrolysis and laser treatments). It was enough to satisfy the Gender Recognition Panel into granting her a certificate in July 2006 and according to the judge "presents convincingly as a women". However this is not enough to satisfy the Gender Identity Clinic who require her to live "in role" within a women's prison.

Having looked at the Gender Recognition Act (it is recommended as an excellent cure for insomnia) I had a different interpretation of the allowing for the granting of the certificate and therefore the gender marker on her birth certificate than the GRP. But given she is in receipt it was argued that she should be recognised as a woman as per section 9. Thankfully the judge managed to stay awake long enough when reading and recognised it marked "an important milestone in the recognition of transgender rights."

The authorities defence.

The issue of cost was mentioned, they estimate moving her to the women's estate (in a special regime) to be £85,000 although some press reports imply this is an extra cost to the tax payer, given that she is in a special regime at the male estate her cost of incarceration may not be that much greater. The traditional and frequently successful "floodgates" argument was also put forward. As was the fact that she was for all intents living as a woman so much so that she had obtained a GRC and so there was no breach especially given there is no human right to SRS at the moment. Although rather unfortunately for their defence their own expert conceded that surgery might be desirable and riskier if not done.

The new draft guidelines on prisoners with gender dysphoria.

After much prevarication and interminable delay lasting many years the Prison Service finally managed to write some guidelines on prisoners with gender dysphoria. The draft arrived just as the case was coming to court. They allow for treatment except where there are "risk factors" which she poses but which are "not exceptional" compared to other female prisoners. The judge appears to have taken these draft guidelines into account several times when summing up.

The Human rights angle.

The judge considered whether her Article 8 and Article 14 rights were broken. Article 8 relates to a right to a private and family life and Article 14 relates to a right to enjoy these rights in the convention without discrimination regarding sex, race and so on. Previous judgements have determined that when someone is imprisoned they do not lose all rights.

The judge concluded that the current situation interferes with her personal autonomy "in a manner which goes beyond that which imprisonment is intended to do". Taking into account the reports by Dr James Barrett which concluded that she would only be eligible for surgery if transferred to a women's prison, the extracts from his report included in the law report state RLE is needed while admitting staying in women's prison is a rather extreme form of RLE necessary none the less.

Wednesbury unreasonableness and conclusion.

So in the end she won her challenge on human rights grounds, but the judge added as a footnote that she would have won because the Prison Service were "Wednesbury unreasonable". So even without the Human Rights Act much derided by right wing commentators the result would have been the same

14 comments:

Carolyn Ann said...

What is "RLE"?

Thanks!

Carolyn Ann said...

I figured it out... The context threw me off. :-)

chrissie said...

How typical of this bunch of hypocritical arsholes, that the first organsiation to end up in court for attempting to ignore a GRC was the government that brought it it....

Once that certificate was granted, the government didn't have a leg to stand on, and this should nevr have got to court. More waste of tacpayers' money. Send the bill to Jack Straw.

And so much for New Labour's commitment to trans equality. They've shown that, as far as they are concerned, it's not worth the paper it's written on.

hugs
chrissie
xxxxx

Carolyn Ann said...

There's a couple of really interesting moral questions, here.

First, is the prisoner entitled - beyond what the law apparently stipulates - to full, fair and unbiased medical treatment? The rapist has shown himself [yeah, I know] to be perfectly willing to act without consideration to others. Does society have any moral obligation to consider his [yeah, I know] request, considering that he [...] did not consider the morality of his [...] actions before raping some poor woman? Is punishment restricted to imprisonment?

In a time of scarcity - as in the NHS is likely to have massive cutbacks within a year or two - is this gender re-assignment more of a priority than that of someone who chooses to obey the law? And doesn't deliberately hurt others?

Another consideration is protection. Will the women prisoners be protected from him [...] if he decides to raping again? (He [...] has little to lose, depending upon how he [.] views his situation.) He may claim without inclination - but how does anyone know if he's telling the truth? If he does rape again, what does that say about the moral standards being applied?

What protective measures will be put in place to protect him [...] from the women's prison population? And is that not an undue burden on the rights of the women in prison? After all - he [...] will have to have segregated facilities, they won't. So he [...] gets special treatment - which is at odds of his [...] incarceration.

In short - why should this rapist get a consideration he did not give his victim? Or a law-abiding person who can't get gender surgery because a cash-strapped health service was forced to accommodate a rapist?

The bill will be sent to jack Straw, Chrissie. The problem is - he doesn't pay it. The British taxpayer picks up the tab.

Jut to be clear - it is not my intention to stir a hornets nest; I simply disagree that this rapist deserves any consideration as a human being. After all - he [...] never gave a moments' thought to the suffering of his [...] victim.

Carolyn Ann

Fiona Bianchi said...

Has this person started hormone treatment? Given that hormones + anti-androgens would affectively amount to chemical castration and, over a significant amount of time, lead to physical and mental changes, then you may be able to allay the fears concerning risk in a women's prison.

At any time has the GID being 'blamed' for the criminal acts for which this person was convicted? Is that even feasible?

chrissie said...

It's actually quite hard to find out details of the case itself. However, I understand from conversatiosn and article comments elsewhere that both the manslaughter and the rape were linked to a relationship that this woman was in, and that she was legally male (ie, had not fully transitioned) at the time.

In the UK, prisoners are still allowed full rights as regards medical treatment, and that includes GID because it is a recognised medical condition. Any prisoner would have the right to such treatment, if diagnosed, in the same way that they would have the right to any other medical treatment.

As regards the issue of whether she should be in a male or female prison, that's a simple one. She has a GRC. She is female. She goes to a woman's prison.

That's the law.

chrissie
xxxx

Carolyn Ann said...

I'm having a hard time with the idea that a rapist deserves the support of anyone. The circumstances of a rape don't matter. (The circumstances leading to manslaughter do matter.)

How does anyone reconcile supporting this individual's right to gender treatment with the violence of their crime? It is morally impossible to separate the violence of rape from what this person desires and is using the law of the land to get.

I cannot accept that a rapist deserves any consideration whatsoever. Especially when so many members of the transgender community are victims of violent crimes.

Do the supporters of this court decision perceive the crime separately to the punishment? Do they discount the extreme violence of *his* actions? (I do not consider it improper to use the male pronoun in describing actions he committed as a man.) Is the gender surgery more important than the crime and well deserved punishment?

I also don't think that, morally, this person deserves the medical treatment they're receiving. All of this will cost money, and that money will come at the detriment of someone else's treatment; perhaps someone who is not a criminal unlikely to get out of jail.

Personally, I do not think that a criminal deserves the rights they should forfeit upon conviction. A criminal should not be able to serve in the military, vote, or have free say in the conditions of their life upon release. A violent rapist certainly does not deserve full rights to health care; it should be a restricted right. They do not deserve the consideration of society. Violent criminals forfeit the right to fair consideration upon conviction. They owe society, society does not owe them. As this is a discussion about punishment for violent crime, I believe it relevant to mention that.

It might be the law, but I don't see this as a moral victory for anyone, or for the law. It is a victory for a prisoner, who now has more rights than a law-abiding transgender person waiting for their surgery. The law-abiding transgender has to live in society, and risk their life for what they need. This person now has the full protection of the state; (s)he is not in as much danger, and does not have to contend with the everyday risks other, law-abiding, transgendered individuals have to.

I think it morally repugnant that a violent rapist and killer should be able to demand from society anything. He is taking from the transgender community, and he is taking from some anonymous, law-abiding individual their chance at getting surgery sooner than later. (If one person has to wait for their surgery because this rapist is getting their's, the theft is clearly annunciated.)

The immorality of his crime is inseparable from the immorality of demanding society support his/her transition. Basically.

Carolyn Ann

Lynn Jones said...

Crikey, this is a loaded post isn't it? :)

In my head I think the rights of prisioners to privacy and healthcare are vital. But... in my heart, the person in question is a convicted rapist.

Does that mean that prisoners should be mistreated as they mistreated/abused another person? While what (s)he did was wrong, does delaying - or even stopping - the treatment make the original crime go away?

My gut feeling is, no it doesn't, but then I'm a soft hearted liberal and I guess I'd rather see someone be rehabilitated and reintegrate.

Not an easy one to answer when we've only got the press reports to go on. :)

Carolyn Ann said...

I'm not saying the rapist should be mistreated, I just don't believe (s)he retains any rights to demand society pay for gender treatment.

The law says the prisoner does, and I consider that law to be ridiculous. The rapist has not earned the right to rehabilitation; rapists and other sex offenders have a high recidivism rate, which is why there are so many "Megan's Law's" in the US. I don't know if the UK has a similar law, or not.

If it is asserted that a violent killer and rapist (the definition is redundant, I know; I use it for emphasis) has the same rights as someone who commits a property crime, then either the crime committed against a person is reduced to the level of property crime, or the property crime is given a special elevation. Murder (whether intentional or not) removes from someone what they hold most dear, their life. Rape takes from someone almost as much; it can take years, decades in some cases, for a person to recover from a rape. Property crimes can reduce our comfort level, a burglary can undermine our sense of security, but a rape violates the victim in a senseless and demeaning way, and does so with extreme violence. The violation of rape is not the same as a property crime.

The punishment of a rapist must necessarily be harsher (to provide more deterrence, at the very least; to remove that person from ever endangering others again, at best). Because of the nature of the crime, the rapist does not warrant "special" consideration.

If the argument is that this is not special treatment, I'd refute that. In committing the crime of rape, and additionally killing someone, this person has forfeited any humane consideration. They can claim, because Britain is supposedly enlightened, to 3 square meals and a place to sleep, but that is the only privilege they warrant. And that privilege exists solely because putting the man (see my previous point on the pronoun) to death would be inhumane. Beyond that, the special and heinous nature of his crime does not warrant his gaining any treatment if that treatment would penalize someone who is law-abiding. And his/her gender surgery reassignment penalizes society because it necessarily delays the same treatment for someone else. Someone who is more deserving, because they abide by the laws of the land and don't impose their will upon others by violent means.

Society is not rewarded by giving this person the treatment they desire; it is penalized. If this seems contrary to my usual libertarian impulses, then so be it. I'd rather argue Bentham's utility on this, because it is relevant than Rand's libertarianism! (Rand would probably sentence him to death, and be done with it. A sentence I don't much fault with. Besides reducing society to level of the killer, that is)

Circumstances don't matter with rape; they do matter with manslaughter. By raping someone, he forfeits pretty much all of his rights. if we start to consider the circumstances that led to the rape, we begin to excuse the inexcusable. He decided to rape that woman - the victim did not decide to be raped! The person he killed had little choice in the matter, either. His violence (and clear propensity for it, demonstrated by the fact that he was convicted of the crimes) means that society has an obligation to punish him - not reward him with special consideration. Society owes him nothing. The transgender community does not owe him any support whatsoever; they should distance themselves, and condemn a law that allows a violent criminal the same rights they continually have to fight for.

Carolyn Ann

chrissie said...

The moral issue is a valid one, but in this case it is secondary to the legal one in what is, after all, a simple legal matter.

Denying treatment for a recognised medical condition IS mistreatment, under ANY genuine ethical or moral guidelines.

This woman has been found guilty of serious crimes. The sentence for that is a period of incarceration. She is incarcerated.

Being denied medical care is NOT part of her sentence.

Regardless of her serious crimes, she suffers from GD, a recognised medical condition. That does not excuse her crimes, not should it mitigate the length of any custodial sentence.

Now, if one is really saying that convicted prisoners should be denied medical treatment for GD, as part of their punishment, that can only mean one of two things.

That one thinks this denial should apply to ALL medical treatment for prisoners OR, that one does not accept that GD is a medical condition, period.

One can't have one's cake and eat it too.

love
chrissie
xxxx

Carolyn Ann said...

Bu the rapist not only gets the cake, (s)he gets to eat the entire thing!

I am not saying that all prisoners should be denied medical care. I am arguing that the medical care a violent sex offender can obtain should be restricted. Quite severely. The nature of their crime puts them in a different moral category to drug offenders and those who commit property crimes.

Your assertion that I either accept that all medical care be provided, or that I don't recognize GD as a medical condition is a false-flag argument. I know GD is a medical condition. I simply consider it immoral for society to provide such care to a violent sex offender. Especially as it will take from someone else who is not a violent sex offender.

This rapist imposed his* will upon his victim. (S)He* is now imposing it upon society. He demanded, and forcibly obtained, sex with his victim. He is now demanding that society accommodate his need to be a woman. He is using the law to enforce that demand. Where was his desire to be lawful when he was raping and killing?

Like I said, this is a debate about punishment for crimes. I do not think his* punishment should stop at incarceration. He forfeit his right to fair treatment upon conviction for rape. He took from his victim; now he is extending his taking to an anonymous transgendered individual because they are delayed in obtaining their surgery because (s)he is insisting on having his/hers.

The debate is not whether GD is a medical condition or not. It is about whether the rapist has the right to demand treatment for it from society. I think he forfeit that right upon conviction for a violent sex crime. Which is why I argue that the transgender community should not be supporting this criminal. The TG community has enough concerns without being condemned as supporting violent sex offenders; especially as the transgendered are far too often the victims of violent crime!

Carolyn Ann

*I still consider it appropriate, correct even, to refer to the rapist as a man - he committed the crime as a man. I freely acknowledge that I have a hard time referring to such a violent felon in their preferred pronoun. I think it demeans the valid efforts of law-abiding transwomen to be known by their preferred pronouns.

Carolyn Ann said...

Oops. I forgot to address an important point you made, Chrissie!

The moral argument underpins the legal one. In this case I think the legal argument has become estranged from its moral foundation.

The ethics behind the legal argument says that all prisoners are the same, and incarceration enforces that. The assumption is that imprisonment is sufficient punishment. There's also the argument that prisoners do not forfeit the right to full, taxpayer funded, medical care.

Another way of saying this is to assert that after conviction, all crimes hold the same essential status. This is clearly not the case - some crimes are more heinous than others. It might be argued that this is reflected in the punishment - a long term in prison for serious crimes, not so long for not so serious crimes. But once in prison, all prisoners are equal to one another, but not to law-abiding members of society, except sometimes. The moral and ethical inconsistency is readily apparent.

Obviously I disagree with that. I disagree with the entire premise. I dispute that a rapist should be considered the same as a burglar. Any crime that involves overt violence against someone is more heinous than a property crime. A rapist is not the same as a car thief. A terrorist is not the same as a murderer, or a serial killer.

One thing that I think is consistent is that a criminal forfeits rights, some of them forever, some of them while imprisoned. The right to vote should be a lifetime forfeit. The right to freely travel is a temporary forfeit (with exceptions). The right to full, fair medical treatment is a temporary forfeit - while incarcerated, you do not have the right to demand the same care as someone who does not commit crime. If that temporary forfeiture is for the rest of "your" (generic meaning) natural life, tough luck.

Depending upon the nature of the crime, society is perfectly within its rights to remove other rights from the convicted. That's how child molesters can get harsher after-imprisonment treatment than a car thief.

Jessica De Leon said...

This is a very interesting case, thanks for sharing :)

GirlWhoShould said...

To round off the thread.

It was indeed a contentious post, perhaps not one with an easy solution. There have also been recent cases from the United States involving trans inmates which have had different outcomes. I haven't read the law reports (if published) to comment though.

To clear something up she is receiving hormone treatment and Gid was mentioned as a mitigating factor in both cases.

I do accept imprisonment means a loss of rights however as I noted not all rights.

Hopefully the future guidelines on trans prisoners will be finally implemented.